Isles & Nelissen
[2021] FedCFamC1F 295
•20 December 2021
Federal Circuit and Family Court of Australia
(DIVISION 1)
Isles & Nelissen [2021] FedCFamC1F 295
File number(s): LNC 376 of 2017 Judgment of: McGUIRE J Date of judgment: 20 December 2021 Catchwords: FAMILY LAW – CHILDREN – best interests of the children – with whom the children shall live and spend time – where the children enjoy a meaningful relationship with both parents – where there are allegations of child sexual abuse by the father – where final parenting orders were made by consent in September 2020 providing for the children to live with the mother and spend time with the father on a stage basis such time initially being supervised but culminating in the children spending unsupervised time with the father – where there are allegations of alienation by the mother – unacceptable risk considered – tendency evidence considered – orders that children live with the mother – court unable to make positive findings of abuse – orders that children spend supervised time with the father in circumstances where the Court is satisfied the father poses an unacceptable risk to the children Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC(2),(3), 61DA and 65DAA(3)
Evidence Act 1995 (Cth) 1995 ss 97 and 140
Cases cited: Briginshaw v Briginshaw [1938] HCA 34
Ms AP & Ms AP (1998) FLC 91-979
N & S and the Separate Representative (1996) FLC92-655
Napier & Hepburn (2006) FLC 93-303
PST & CPR [2006] FMCAfam 36
Fitzwater & Fitzwater [2019] FamCAFC 251
Keane & Keane [2020] FamCA 99
IMM v The Queen (2016) 257 CLR 300
Velkoski v The Queen (2014) 45 VR 680 at 682
R v Ford (2009) 201 A Crim R 451
WK v SR (1997) FLC 92-787
Hughes v The Queen [2017] HCA 20
R v Bauer [2018] HCA 40
McPhillamy v The Queen [2018] HCA 52
Jones v Dunkel (1959) 101 CLR 298
Division: Division 1 First Instance Number of paragraphs: 304 Date of hearing: 15, 16, 17, 18 and 19 February 2021, 3, 4, 5 and 6 May 2021 and 17, 18 and 19 August 2021 Counsel for the Applicant: Mr Murray Solicitor for the Applicant: Jacobs Family Law Counsel for 1st Respondent: Ms Sawyer Solicitor for the Respondents: Ogilvie Jennings Counsel for the 2nd respondent: Ms K Brown Solicitor for the Respondents: Department of Communities Counsel for the Independent Children's Lawyer: Mr Lewis Solicitor for the Independent Children's Lawyer: David Lewis ORDERS
LNC 376 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ISLES
Applicant
AND: MS NELISSEN
First Respondent
DEPARTMENT OF COMMUNITIES
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
MCGUIRE J
DATE OF ORDER:
20 december 2021
THE COURT ORDERS THAT:
1.That all extant orders in respect of the children W born 2011, X born 2013, Y born 2014, and Z born 2015 ('the children') be discharged’.
2.That the mother, Ms Nelissen (‘the mother’) have sole parental responsibility for the children conditional upon providing notice to the father of important and relevant medical and educational aspects regarding the children.
3.That the children live with the mother.
4.That the children spend time with the father Mr Isles (‘the father’) such to be professionally supervised at a Contact Centre at such times and frequency as the Contact Centre can accommodate with the father to be responsible for the payment of any costs associated with the provision of the supervised time–with.
5.That within twenty eight (28) days of the date of these orders the father shall give notice in writing to the solicitors on the record for the mother, the second respondent Department of Communities, and the Independent Children’s Lawyer that he intends to spend time with the children pursuant to these orders failing which time for the children with the father be reserved, but should the father give such notice then the parents shall prudently complete all interviews and preliminary procedures necessary for the children to spend time with the father at the Contact Centre.
6.That should the father elect to spend time with the children pursuant to these orders then the father and the children have reasonable communications by telephone or other media as agreed between the parents, but should the father not elect to spend time with the children pursuant to these orders then the father's communication with the children be limited to gifts and cards to each of the children on the occasion of their birthdays and at Christmas or otherwise as agreed between the parents from time to time in writing.
7.That the mother shall cause all of the children to enrol in and attend a Protective Behaviour Program as recommended by the Department of Community Services (Child Safety) until its completion.
8.That there be liberty to the parties, or any of them, to make application to this Court in respect of the removal of the requirement for supervision.
9.BY CONSENT the parents, their agents and servants be and are hereby restrained from bringing the children or any of them either directly or indirectly into contact with Ms L.
10.That a copy of these Orders and Reasons be provided to the Principal Registrar/CEO of the Federal Circuit and Family Court of Australia with reference to paragraphs 285 to 300 with a request that a copy of these Reasons and Orders be also provided to the Secretary of the Department of Justice.
11.Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
12.That upon the making of these Orders all outstanding applications are dismissed except costs applications between the parties, if any, which are to be dealt with in accordance with the Family Law Rules 2021 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym of Isles & Nelissen has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McGUIRE J
APPLICATIONS
The father Mr Isles is the applicant in parenting proceedings in respect of the parties’ four children:
·W born 2011 (aged 10 years);
·X born 2013 (aged 8 years);
·Y born 2014 (aged 7 years); and
·Z born 2015 (aged 6 years).
The fundamental issue before the Court is where the mother, Ms Nelissen, deposes that on 18 April 2018 the oldest child W made a disclosure consistent with being sexually abused by the father specifically that the father 'puts his finger up my bum'. There are issues as to whether the Court is able to make positive findings in respect of the allegation of child abuse or, alternatively, as the father asserts, that the mother has fabricated an allegation or more properly manipulated the child into making and continuing the allegation as a form of alienation of the father from the children. Should the Court be unable to make positive findings then there remains the question of whether there is an unacceptable risk in the children having a relationship of unsupervised overnight time with the father or an unacceptable risk of the mother perpetrating emotional and/or psychological harm on the children.
The mother seeks the following orders:
(1)that she have sole parental responsibility for the four children;
(2)the children live with her; and
(3)that the children spend time with the father only as can be professionally supervised.
The father's position has moved to a degree during the course of these lengthy proceedings. He now argues for the following orders:
(i)that he have sole parental responsibility for the children;
(ii)the children live with him; and
(iii)that the children spend time with the mother on a fortnightly basis in a block of five nights together with time on special days.
The father's case is that he has a superior demonstrated parenting capacity than does the mother where the mother has serious deficiencies. Additionally, he argues that the mother has manipulated W’s asserted disclosure for her own ends and thereby suffers a critical lack of insight into the needs of these young children to have a relationship with their father and, in turn, rendering on them emotional and psychological harm.
The father says that the children have consistently expressed views and preferences to spend more time with him and despite there being evidence allowing the Court to find that the mother has thwarted and is unlikely to ever support the children's relationship with him.
The mother says that at about 10.30pm on 18 April 2018 a number of adults and children were watching television at her home when W stated that his father ‘put his finger up my bum’. The mother further says that on the evening of 20 April 2018 at her home she and the father had a conversation in her bedroom about the allegation. She says that prior to leaving the home the father went to W who was sitting on a couch in the lounge area and adjacent to the father’s brother, Mr H, and whispered something to W which she says W later told her was a form of apology “I love you. I’m sorry. I won’t do it again”. The father agrees that he did speak to W but denies making an apology.
The father denies the allegations of sexual abuse. He says that the mother herself has perpetrated abuse on the children by way of a false and malicious allegation for her own selfish ends. He says that the mother has opportunistically grasped an otherwise plausibly innocent statement made by W and proceeded to manipulate the child through the consequent forensic process.
The father says that the mother is motivated by malice towards him and has suggested her motive being his rejection of her post–separation proposal to him to father another child for her.
W was interviewed by an officer of Police on 19 April 2018. He made no disclosures. At the mother’s request, he was again interviewed by the same police officer on 20 April 2018. On this occasion he did repeat his disclosure of 18 April. W was interviewed a third time in November 2018 where he discloses the father’s “apology” of 20 April.
The mother says that there is evidence available to the Court so as to make a positive finding that the father has sexually abused W. Alternatively, she says that the Court should find that there is an unacceptable risk for the children spending unsupervised time with the father with the risks being of sexual abuse and/or emotional abuse.
The mother's concedes that the children love their father and are desirous of spending more time with him.
The mother urges the Court to rely on a number of examples of tendency evidence in respect of both the making of a positive finding and to the issue of unacceptable risk. The mother says that such evidence shows the father to have a propensity for inappropriate sexual behaviour towards underage males including relatives.
The mother also argues that the father has a demonstrated history of, and therefore a propensity for, family violence including having acted violently towards her in physical, controlling, and coercive senses.
The mother says that members of the father's family are not suitable or protective supervisors given that they do not acknowledge the father's abuse of W.
The mother denies that she is motivated by self–interest and says that she has neither coached nor manipulated W in respect of his disclosures.
The Court has the benefit of an Independent Children's Lawyer, Mr Lewis (‘ICL’). He recommends orders in the alternative. Firstly, if the Court considers that the father poses an unacceptable risk to the children then he proposes the following orders:
(1)the parents have equal shared parental responsibility for the children;
(2)the children live with the mother; and
(3)the children spend time and communicate with the father in a two–week cycle being:
(a)in week one on Saturday from 9.00am–7.00pm and on Sunday from 9.00am–5.00pm;
(b)in week two from Thursday after school (3.00pm) –7.00pm; and
(c)time on special days.
The ICL argues that long term supervision is not practical. He says that any risk can be mitigated by limiting time to day times, the mother’s own vigilance, and educating the children as they become older so they can self-protect.
If the Court does not find the father poses an unacceptable risk to the children then the ICL proposes:
(1)the parents have equal shared parental responsibility for the children;
(2)the children live with the mother; and
(3)the children spend time and communicate with the father:
(a)in week one from after-school Thursday until the commencement of school Monday;
(b)in week two from after-school Thursday until the commencement of school Friday;
(c)for one half of all gazetted school holidays; and
(d)on special days.
The Department of Community Services (Child Safety) has joined at this stage of proceedings as a party and second respondent.
The second respondent opposes any orders that would have the children spending overnight and/or unsupervised time with the father at least until such time as the mother, the Department and the Court can be satisfied as to the children’s capacity to self-protect.
Counsel for the second respondent argued strongly that there is material before the Court, including tendency evidence, to allow a positive finding that the father has sexually abused W.
Counsel argues that W's disclosures have been consistent, coherent and truthful, and like the mother, the second respondent argues that the tendency evidence is significantly probative of the father having displayed inappropriate sexual interest in underage children including relatives. The emphasis of the orders sought by the second respondent is on the protection of the children including providing protective behaviour education and/or future review of initially strict supervision to determine the ability of the children to self-protect.
Relevant background
The parents were in a relationship from 2010 until March 2016. They both agree that their sexual relationship continued post their separation and, on the father's material, until about March 2018.
The father says that in about March 2018 the mother proposed that he father a further child for her with the mother to assume the full commitment for the child, but allowing the child to have a relationship with the father. The father says that he rejected this proposal.
The mother has now re-partnered with Mr N. They are the parents of an infant child. Mr N did not give evidence in these proceedings.
There is no evidence that the father has re-partnered. The father is 36 years of age. He has a child Ms AP (DOB 2007) (aged 14 years) from a previous relationship with Ms AQ who gave evidence in this matter.
The child Ms AP was the subject of Family Court parenting proceedings held over five days in 2012 before Cronin J. An issue raised before His Honour was that Ms AP returned from a contact visit with the father in January 2011 disclosing that 'a man had put a screwdriver in her bum'. Despite the lack of specificity by the child, attention centred on the father in respect of the allegation.
Numerous other matters of tendency evidence were agitated before Cronin J being those same matters raised in these proceedings in respect of the father's propensity for inappropriate sexual behaviour. Specifically, Cronin J considered a series of MSN communications between the father and his male cousin “Mr E”, when the latter was fifteen years of age and the father was an adult. The messages were discovered by Ms AP’s mother, Ms AQ, and caused or contributed to the relationship breakdown. It was then and now asserted that the messages were indicative of a form of sexual relationship between the participants in the communications or a form of grooming. Secondly, there is evidence of the father in 2009 being convicted of being in possession of child exploitation material on a computer where he was subsequently acquitted on appeal but where he also conceded being in possession of other child exploitation material which was not the subject of the indictment.
Cronin J was not prepared to make any findings of fact negative to the father in respect of the specific issues raised against him and made no findings of unacceptable risk. Orders were made for those parents to have equal shared parental responsibility for Ms AP and with the child to live with the mother but to spend time with the father each second weekend and for half of school holidays.
The mother in this matter, Ms Nelissen, gave evidence for the father in the proceedings before Cronin J. Ms AP's mother, Ms AQ, gave evidence in these proceedings for the mother. The father does not currently spend time with Ms AP.
I have been invited to have regard to the judgment and reasons of Cronin J but, where of course, I am not bound by His Honour’s findings of fact.
Both parents in this matter live in Town 1 and historically have done so. Neither is employed and apparently that is the status of the each of them long–term.
There have been two previous substantive parenting proceedings between these parties in these Courts. On 1 August 2017 the parents entered into final consent orders providing for an equal time arrangement for the children between the parents.
On 21 September 2020 the parties again entered into consent parenting orders. Those proceedings emanated from the same allegations of sexual abuse against the father made by W on the 18 April 2018 which are the primary focus of the current proceedings. Both parents were then represented and the Court had the benefit of the current ICL being Mr Lewis. The second named respondent Department had been invited pursuant to s 91B of the Family Law Act 1975 (Cth) (‘the Act’) to intervene but had declined the invitation.
The father had commenced proceedings by application of 18 July 2018. Interim orders were made on 22 October 2018 for supervised time for the children with the father. The father then spent sporadic time with the children between October 2018 and April 2019 including the filing by him of a contravention application on 20 May 2019. On 31 July 2019 further orders were made for the children to spend time in the interim with the father on Sundays between 11.00am and 5.00pm such time to be supervised by the paternal grandfather.
On 21 October 2019 interviews were conducted by the Court appointed expert, Mr J, with his first report being released on 28 October 2019. Mr J subsequently authored a second report dated 23 March 2020.
The consent orders of 21 September 2020 provided for the parents to have equal shared parental responsibility for the children and with the children to live primarily with the mother. The children were to spend time with the father on a graduated basis such time initially being supervised by a relative of the father and followed by substantial attendance by a relative but culminating in the children spending unsupervised time with the father as follows:
(i)in week one from after-school Thursday until the commencement of school Monday; and
(ii)in week two from after-school Thursday until the commencement of school on Friday.
Although the matter had substantially resolved prior to the taking of evidence, there was some disagreement as to the regime of the children's time with the father such being resolved by way of submissions from counsel for each of the parties and the ICL and without sworn evidence but where the Court needed to be satisfied that the proposed orders would be in the children’s best interests in circumstances where the disclosure by W had not been agitated in any court. My specific recollection is of the Court requiring submissions in respect of the previously asserted risks to the children before the orders were made.
The consent orders of 21 September 2020 did not come into operation in respect of the children's time with the father. Within a short compass the State Department of Child Safety (now the second respondent) intervened, conducted an assessment, and effectively acted to thwart the orders by bringing an application under the State Legislation to a magistrate. The State Court orders placed the children with the mother but with only supervised time with the father. The father not surprisingly immediately brought a fresh application initiating proceedings in the Federal Circuit Court.
Consequently, and apparently after discussion between the ICL, counsel for each of the parties, and the now second respondent Department, it was agreed that the matter would again be dealt with in this Court rather than the second respondent continuing its application in the State Court.
In an trial affidavit filed 4 February 2021 the mother deposes:
[14]Although the Orders were by consent, I felt pressured to consent to the Orders even though I did not agree, because I was told by my previous solicitor that I could lose my Legal Aid funding.
[15][The father’s] time was meant to commence on Friday of that week, 25 September 2020. However, his Father and brother refused to supervisor so the visit could not go ahead.
[16]During this time, Child Safety Services filed an Application for an Assessment Order on 30 September 2020. [The father] did not spend any time with the children in accordance with the Final Orders of 21 September 2020. The children currently live with me.
The mother elaborated considerably on this evidence in the witness box. When asked why she had entered into the consent orders, she repeated that she had been told that she “might lose my legal aid”. The question, of course, is to the accuracy and relevance of this reasoning when the litigation was, in any event, to be finalised then either by way of the consent orders or the trial. There was no indication that the mother had, in fact, her Legal Aid funding for the conduct of the trial withdrawn. The mother then further elaborated and volunteered during cross-examination here that her lawyers had informed her of the risk that the father may be successful in his application for the children to live with him should the matter proceed to its conclusion and that, for her, the lesser of evils was that the children live primarily with her and spend time, albeit unsupervised and overnight, with the father. The mother's own words from the witness box were “I could live with that”. Then, and despite no mention in the affidavit material, the mother further revealed that there had, in fact, been discussions between herself (and/or her own mother) and officers of the Department of Child Safety in the short period prior to the anticipated trial on 21 September 2020. The mother disclosed that she had been told by Departmental officers that should this Court make any orders involving the children having overnight and/or unsupervised time with the father then they would act immediately to ensure that this did not occur and that the mother could proceed to sign consent orders allowing inter alia for the children to spend overnight/unsupervised time with the father, but in the full knowledge that this time–with would not take place. None of this was in the mother’s affidavit material. The second respondent Department, having being a party to these proceedings for months before this trial, did not disclose this significant and probative evidence in any affidavit or otherwise prior to the mother’s revelation from the witness box.
The consequence of the father bringing another application initiating proceedings to this Court, was that further interim orders were made on 24 November 2020 providing for the children to live with the mother and to spend supervised time with the father each Tuesday after school until 5:30pm and each Saturday from 9.00am until 5.00pm with the Tuesday visits being supervised by a child safety officer and the Saturday visits supervised by the children's paternal grandmother, paternal grandfather, and/or paternal uncle, Mr H.
The children are all now of primary school age. W attends Primary School, currently in grade 4. He does not always attend, or attend for full days, because of his serious behavioural issues. Currently his school day finishes at 10:30am. He has a one–on–one teacher. His behaviour at school has been extremely problematic and he has just recently been assessed for possible Autism or other conditions.
Y has already been diagnosed with Autism, ADHD, and Global Development Delay.
During the course of these proceedings the mother has given birth to another baby. The father is Mr N who was a person present at the mother's home with his then partner, Ms P, and another adult, Ms Q, when W is alleged to have made the allegations in respect of his father on 18 April 2018. Ms P was then the mother's friend but apparently is no longer. Ms Q is the wife or partner of “Mr U” who is an acquaintance of these parents and was himself sentenced to three years imprisonment in October 2018 on a conviction of sexually assaulting his daughter. Although, apparently witnesses to W’s alleged notification and where Mr N now lives in the children’s home, none of these three people gave evidence in these proceedings.
The relevant law
Fundamentally, and pursuant to s 60CA of the Act, I am to have the children's best interests as my paramount consideration in determining their living and parenting arrangements. I determine those best interests by referencing the proposals of the parties and the probative evidence to the numerous and mandatory factors set out s 60CC(2) and (3) of the Act against a background of the Objects and Principles of the legislation set out in s 60B which provides as follows:
60B Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Each of the parents, by the time of final submissions, is asking for an order for sole parental responsibility for the children. The ICL proposes an order for equal shared parental responsibility.
Section 61B of the Act defines this 'responsibility' as relating to the powers, duties and authority that parents have by law for their children. In a practical sense, it normally refers to the decision-making process for long–term and important decisions for children as opposed to the more mundane day–to–day decisions which parents make for their children. Matters of education, religious affiliation, and medical procedure are often cited as examples of the obligations of 'parental responsibility'.
Section 61DA of the Act offers a presumption that parents have equal shared parental responsibility for their children. That presumption does not apply if the Court is satisfied that there has been family violence or abuse of a child within the broad definitions of those terms in the Act. Quite obviously, the allegations made by the mother in this matter sit within the definitions of family violence and abuse as do those of the father who alleges broadly that the mother has perpetrated emotional abuse on the children by denying them a proper relationship with him. Alternatively, the presumption may be rebutted by evidence satisfying the Court that it would not be in the best interests of the children for the parents to exercise equal shared parental responsibility.
The significance of either the presumption of equal shared parental responsibility applying or the Court making such an order is that the Court is then mandated to enter into a pathway of statutory and intellectual consideration in respect of the children's best interests where, firstly, the Court is to consider whether it is both in the children's best interests and reasonably practicable for the children to live in an equal time arrangement between the parents. If the answer to either of those questions is in the negative then the Court turns to consider whether it is both in the children's best interests and reasonably practicable for them to live in an arrangement of ‘substantial and significant time’ between the parents. ‘Substantial and significant time’ is defined at s 65DAA(3) of the Act as follows:
(a) the time the child spends with a parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays;
(b) the time the child spends with the parent allows the parent to be involved in:
(i)the child's daily routine;
(ii)occasions and events that are of particular significance for the child; and
(iii)the time the child spends with the parent allows the child to be involved in occasions and events little special significance to the parents.
The orders that the mother and the second respondent propose do not sit within the definitions of either 'equal time' or 'substantial and significant time'. However, the orders sought by both the father and the ICL do accord with the definition of 'substantial and significant time'.
It is important to emphasise that the task for the Court is to make orders which are in the children's best interests and certainly not one constrained to a choice between the options presented by any of the parties. As the High Court observed in the CDJ v VAJ[1] at:
[152]The evidence in residency cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judge’s think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions. In G v G,[2] Lord Fraser of Tullybelton pointed out:
"The jurisdiction in such cases is one of great difficulty, as every judge who has had to exercise it must be aware. The main reason is that in most of these cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory."
[1] (1998) FLC 92 – 828.
[2] Footnotes omitted.
Whereas the s 60CC(2) and (3) factors in the Act are designated as 'primary' or 'additional', there is no hierarchical importance with questions of the weight to be determined by the Court although where more recent amendments to the Act at s 60CC(2A) dictate that the Court must give 'greater weight' to the protective considerations at s 60CC(2)(b) over the s 60CC(2)(a) considerations.
Principles re-child abuse and unacceptable risk
The fundamental tenant of the arguments of the mother and the second respondent is that the father has perpetrated sexual abuse on W and that the Court should make a finding accordingly or that there is an unacceptable risk for the children being in the unsupervised care of the father because of his propensity for inappropriate sexual interest in children. These are extremely serious allegations with grave ramifications for the children and the parents depending upon the findings of this Court.
It is trite to observe that a party making an assertion of fact has an onus to prove that allegation or assertion. That is, it is not for the recipient to prove his or her 'innocence’.
The standard of proof required is that at s 140 of the Evidence Act1995 (Cth) (‘Evidence Act’) as follows:
Civil proceedings: standard of proof
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
Section 140 of the Evidence Act enshrines the common law requirement commonly referenced in the well–known decision of the High Court in Briginshaw v Briginshaw[3] where Dixon J said at [361-362]:
… when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality… it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
[3] [1938] HCA 34.
The primary position of the mother and the second respondent is that the Court make a finding of fact, on the balance of probabilities, that the father has sexually abused W with consequent orders to attend to future risk. This would constitute a finding of fact based on the empirical evidence as, indeed, would be the task of the Court in respect of the father's submissions that the mother has fabricated or opportunistically manipulated an otherwise innocent statement from W. Put simply, this is an exercise of findings of fact. The notion of 'an unacceptable risk,' is, however, a predictive or prospective exercise for the Court in determining whether there is a 'risk' into the future; the magnitude of the that risk; and whether there are tools or circumstances to adequately mitigate that risk.
The High Court in Ms AP v Ms AP[4] sets out the broader perspective of the Court's consideration as follows:
[21]Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted both by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide – ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the Court to try the cases as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
[22]In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Brigenshaw … It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw v Brigenshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
[23]No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well – founded. In all but the most extraordinary cases, that finding will have this decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be many cases, such as the present case, in which the Court cannot confidently make a finding that the sexual abuse has taken place. …
[24]In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted in assessing the magnitude of that risk. After all, in deciding what is in the best interests of the child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of the child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access…
[25] …to achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
[4] (1988) FLC 91–979.
The process, therefore, for the Court goes further than that in the criminal jurisdictions of simply a finding of 'guilty' or 'not guilty' where here there is a an overall consideration as to the children's best interests within which is a consideration of the 'unacceptable risk'. The latter is not simply a form of 'default finding' but an independent consideration based on the weighing of evidence. As Fogarty J commented in a dissenting judgement in N & S and the Separate Represenative:[5]
One of the difficulties which arises in the application of these principles is in seeking to preserve an independent content of the notion of 'unacceptable risk'. Though the purpose behind the notion is to assist the Court in determining what is in the child's best interests, the importance of asking the question separately lies in its specific guidance to the Court faced with the difficulties which cases of sexual abuse raise. There is a danger that it will be treated just as an expression which must be ritually used in judgments which involve questions of sexual abuse, but given no substantive meaning or weight. It is easy to say that there is or is not an unacceptable risk of sexual abuse, and so to be seen to be applying the correct legal test. Those words seem sometimes to be used without an appropriate degree of consideration.
Because it may be said that in every case there is, at least in theory, a risk of harm, it is inevitable that Courts have to make some effort to quantify the relevant risk. In S and S, supra, Thomas J address the difficulty involved here. At 670 His Honour said:
Qualifying words such as “unacceptable”, “real”, “serious” or “appreciable” are merely methods of expressing the fact that the risk is a foundation in the evidence which is incompatible with the welfare of the child”.
[5] (1996) FLC 92–655 at 82,713.
Consequently, the consideration of an unacceptable risk is an evidence-based one but, at the same time, a prospective one. This is not a two–step or default approach but one requiring separate and independent consideration. As the Full Court in Napier v Hepburn[6] at [84] observed:
There remained an obligation on the trial judge to not only evaluate the harm that might befall the child if there is a future act of abuse, but to also evaluate the prospect of such an act occurring. This is not a search for a solution that will eliminate any prospect of serious harm. It is a search to balance the harm that will follow if the risk is not minimised and the harm that will follow if a normal healthy relationship between parent and child is not allowed to prosper.
[6] (2006) FLC 93-303 at [84].
The consideration of risk is an evidence-based predictive and prospective exercise within the wider issue of the child's best interests and a consideration of what might mitigate the risk and often asking the question 'what turns an unacceptable risk into an acceptable risk?'[7]
[7] PST & CPR [2006] FMCAfam 36 at [71].
The evidentiary fact-finding exercise is conducted to the standard of on the balance of probabilities pursuant to s 140 of the Evidence Act whereas the predictive consideration of unacceptable risk, not being limited to findings of past fact, looks more to “possibilities” There are some divergent superior court viewpoints notably by their Honours in Fitzwater & Fitzwater[8] and conveniently discussed by McEvoy J in Keane & Keane:[9]
[8] [2019] FamCAFC 251.
[9] [2020] FamCA 99.
[70]As Austin J observed in Fitzwater & Fitzwater, the conclusion reached by the Court in proceedings under Part VII of the Act, as reflected in whatever decrees it makes, is still premised upon proof of relevant facts and circumstances by evidence. Critically, however, and as his Honour noted, the law draws a distinction between proof of historical facts and the prediction of future possibilities. Drawing on what the High Court said in Malec v J.C. Hutton (1990) 169 CLR 638 at 639 – 640 and at 643 (“Malec”), Austin J noted that in determining what did or did not happen in the past, a court decides on the balance of probabilities, but not when hypothesising about future possibilities.
…
[73]Austin J’s analysis of the nature of the task confronting a trial judge of this Court when considering whether to make a parenting order in favour of a parent who is alleged to represent an unacceptable risk is, with respect, compelling and of considerable practical assistance. His Honour observed:
138. The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities. (emphasis added)
…
[74]Although in Fitzwater & Fitzwater the majority expresses disagreement with Austin J on the proposition that s 140 of the Evidence Act has no role to play in a case where unacceptable risk of harm is alleged, their difference with his Honour on this point may be more imagined than real. Austin J does not contend that s 140 of the Evidence Act has no role to play in a case where an unacceptable risk of harm is alleged. His Honour’s point, consistently with Ms AP v Ms AP and Malec, is rather that the assessment of risk is predictive. While it will (and indeed must) be influenced by factual findings about past events, the risk assessment task itself involves considering all relevant matters, looking forward, and making a projection. This projection will in part be informed by past events which, consistently with settled principle, have been the subject of findings on the basis of s 140 of the Evidence Act.
I respectfully agree with the comments and analysis of both McEvoy J and Austin J as to the distinctions in the intellectual processes where the consideration of “unacceptable risk” is more nuanced than a straight forward finding of fact, being a past event, on the balance of probabilities where to give some empirical context, one can envisage a circumstance where there is a finding of past fact of sexual abuse but (almost perversely) there being no unacceptable risk into the future.
Tendency Evidence
The cases of the mother and the second respondent rely to a degree on the use of what might be termed 'tendency' or 'similar fact' evidence in respect of, firstly, the Court’s consideration of a positive finding that the father did sexually abuse W, or secondly, that the Court determine there is an unacceptable risk to the children in the father having unsupervised time with them.
Counsel for the second respondent relies on the following tendency evidence in respect of what she urges to be a positive finding that the father has abused W:
(a)Evidence of an historical sexual interest in young boys and included here are the MSN message exchanges between the father and his cousin Mr E, then a 15 year old minor, where it is open for the Court to find the content of such conversations to be of a sexual nature and a process of grooming of the child by the then adult father and shows a propensity in the father of sexual attraction to under age male relatives.
(b)The father’s admission of the possession of child exploitation material on his computer, such being material in his possession contemporaneously with, but not the subject of the indictment on which he was found guilty but ultimately acquitted on Appeal, but again to show an interest of a sexual nature in under age male persons.
In respect of a determination of the unacceptable risk, the tendency evidence sought to be relied upon includes the above but also other material of a broader context including:
(a)That the father has been the subject of previous enquiry in these Courts in respect of his daughter Ms AP, being a child of a previous relationship where it was alleged that ‘a male’ (the father) had inserted a screwdriver into the child’s anus;
(b)Evidence of the father's demeanour when the parents took X to a general practitioner suffering a form of vaginal discharge but specifically to the father's alleged defensive response when the doctor suggested the possibility of sexual interference;
(c)An assertion by the mother that the father had conducted a homosexual affair during his relationship with the mother;
(d)Evidence of the father's association with a person, Mr U, who was charged, convicted and imprisoned for a serious criminal offence and where the father is asserted to have been 'supportive' of Mr U during the process;
(e)Evidence of historical inappropriate behaviour by the father in respect of another child 'AA';
(f)Evidence of both W and X inappropriately touching genitalia of other students at their schools; and
(g)An assertion of historical overt sexual behaviour by the father towards his own brother, Mr H.
Notably, whilst the father essentially denied the fact or impropriety of all allegations, the above evidence was given or adduced without objection as to its admissibility under the Rules of Evidence but where, in my view, it still falls for the Court to determine whether and to what extent such evidence may be relied upon or what weight be given in respect of each of the considerations of factual finding or unacceptable risk for the Court set out above.
Further, not all of the above issues were pursued to the same extent or detail and this impacts on the weight or probative value of such evidence.
The Evidence Act provides at s 97 under the heading 'The Tendency Rule':
(1)Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless:
(a)the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence; and
(b)the court thinks the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
The relevance and utility of such evidence is always dependent upon its probity. ‘Probative value’ is defined in the commentary to the Act[10] as:
'probative value' of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.
[10] Stephen Odgers - Uniform Evidence Law (Lawbook Co, 16th Edition) - [EA97.120].
Questions of probity also call for consideration of credibility, reliability, contamination and/or concoction.
The Act gives no guidance as to the adjective 'significant'. The High Court in IMM v The Queen[11]commented:
… The significance of the probative value of the tendency evidence under s 97(1)(b) must depend on the nature of the facts in issue to which the evidence is relevant and the significance or importance which that evidence may have in establishing those facts. So understood, the evidence must be influential in the context of fact-finding.
[11] (2016) 257 CLR 300 at [46].
Historical common-law authorities in respect of the admission or utility of tendency evidence required a strict nexus test such as 'striking similarity' between the prior and recent event. Although the concept is now codified by reason of the Evidence Act 1995 (Cth), judicial debate has continued between State superior courts.
The Victorian Court of Appeal have maintained the more strict approach stating:[12]
… sufficient common or similar features with the conduct of the charge in issue so as to demonstrate a pattern that cogently increases the likelihood of the occurrence of that conduct.
[12] Velkoski v The Queen (2014) 45 VR 680 at 682.
A broader approach has been adopted by the NSW Court of Criminal Appeal[13] where the Court has stated:
[125]… In my view there was no need for there to be a ‘striking pattern of similarity between the incidents’. All that is necessary is that the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged…
[38]… All that tendency need be, to fall within the chapeau to section 97(1), is a tendency to act in a particular way.
[13] R v Ford (2009) 201 A Crim R 451.
The Full Court of the Family Court in WK v SR[14] from 1997 took the more restrictive view of tendency evidence in respect of the question as to whether or not to make a positive finding of sexual abuse but seemingly the broader approach as to the question of unacceptable risk. Their Honours at [84,693] citing Ms AP & Ms AP (supra) confirmed that in matters concerning allegation of sexual abuse the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof and taking into account the gravity of the allegations (Briginshaw). At [47]-[48] their Honours say:
[47]In children's matters under Part VII of the Family Law Act where the issue is a child’s contact or residence with a significant person in his or her life, the grave consequences of a finding of sexual abuse cannot be overstated. Accordingly, before trial Judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.
[48]This is a matter which must be specifically borne in mind by a Court which is exercising jurisdiction under Part VII of the Family Law Act. When exercising its jurisdiction under this Part, the Court’s paramount consideration must be the best interests of the child, in accordance with s. 65E. The application of this overriding factor often allows the admission into evidence of material which would otherwise be excluded if a rigid application of the rules of civil evidence were followed. Furthermore, when deciding what orders are in the best interests of a child, a trial Judge, may often be confronted with a multiplicity of issues and facts. In these circumstances, evidence which, for example, is relevant and probative in relation to the question of an unacceptable risk of abuse occurring, may not be relevant or probative when deciding whether or not a specific incidence of abuse has in fact occurred.
[14] (1997) FLC 92-787.
Later, and when apparently highlighting a distinction between the use of tendency evidence in respect of the questions for the Court, their Honours say:
[57]Therefore, when considering the admissibility of similar fact evidence in civil proceedings, the test to be applied is: Is the evidence relevant to an issue at trial and if so, does it have sufficient probative force in that it displays a ‘system’, ‘underlying unity’, ‘unusual feature’ or such other similarity that establishes the objective probability of the actual event or fact at issue in the trial as having occurred in the manner as alleged by the party seeking to adduce the similar fact evidence.
[58]This test, relying as it does upon the relevance and probative value of the similar fact evidence, is pertinent when determining the question of the relevance or probative value of the evidence of AR which was admitted by the trial Judge. As has been said above, the evidence of AR was used by the trial Judge not to prove a part of the res gestae of the alleged abuse of CK or BR, but as evidence that the father was of such a character, or had engaged in such previous actions, that he was significantly more likely to have abused the two younger children.
[59]In our opinion, the evidence of AR could not be said to have sufficient probative value in relation to the question as to whether or not the father had sexually abused BR or CK. Although it is evidence of inappropriate behaviour towards a minor, and would be clearly relevant when considering broader parenting issues (emphasis added), it has little probative force in determining whether or not either BR or CK was sexually abused. ….. Even if accepted in its entirety, as it was here by the trial Judge, it cannot form a factual basis to support a finding that the father sexually abused the younger two children. It displays no ‘underlying unity’ or ‘similar features’ …
Subsequently, however, to WK v SR the High Court has on a number of occasions, had cause to consider tendency or similar fact evidence and, more particularly the adoption of either the stricter or broader views and have supported the latter. In Hughes v The Queen[15] after reviewing the approaches of the New South Wales Court of Criminal Appeal and the Victorian Court of Appeal, their Honours (by a majority of 4:3) concluded that in order to have 'significant probative value' pursuant to s 97 of the Evidence Act, it is not necessary that the evidence shows similarity, underlying unity, or a modus operandi with the relevant act. Their Honours say in taking the broader interpretation:
[63]The probative value of the evidence of each complainant… lay in proof of the tendency to act on the sexual attraction to underage girls, notwithstanding the evident risks. The fact that the appellant expressed his sexual interest in underage girls in a variety of ways did not deprive proof of the tendency of its significant probative value.
[15] [2017] HCA 10; R v Bauer [2018] HCA 40, McPhillamy v The Queen [2018] HCA 52.
The High Court at [41] addressed the question as to whether such evidence has 'significant probative value' which involves a consideration of two interrelated but separate factors being:
(a)The extent to which the evidence supports the tendency;
(b)The extent to which the tendency makes more likely the facts making up the charged offence.
Consequently, there must be more than simply evidence to suggest that a person has a tendency to perpetrate sexual abuse. There must be a demonstrable or significant link between the events even within the broader approach adopted by the Court but with the second limb having a particular, special or unusual feature linking the events or something demonstrable or remarkable linking those events such that the probative value of the evidence can be regarded as 'significant' pursuant to s 97(1)(b).
As their Honours in WK v SR (supra) recognised, the exercise of discretion on the basis of 'probative versus prejudicial value’ at s 101 of the Evidence Act is relevant only to criminal proceedings.
In the matter now before me, counsel for the second respondent argues that there is sufficient nexus and hence 'significant probity' in the evidence of the father’s communications with his teenage male relative Mr E with a common feature being sexual interest in young boys and even boys with a family connection. Secondly, it is argued that the evidence of the father's admissions to possession of child exploitation material has sufficient nexus in respect of a sexual interest in underage persons. I generally accept these submissions and I am of the view that such evidence has ‘significant probity’ in respect of the question I must ask myself as to whether or not there can be a positive finding, on the balance of probabilities, that the father has sexually abused W. Further, I am of the view that this material and the other examples of tendency evidence set out above can be considered within the broader issue as to whether or not there is an unacceptable risk for these children in spending unsupervised or overnight time with the father consistent with the approach taken in WK v SR (supra).
THE EVIDENCE
Expert evidence
Mr J - psychologist
Mr J is a psychologist with long experience of preparing reports for and giving evidence to these Courts. He has prepared two reports dated the 28 October 2019 and 23 March 2020. Mr J gave evidence and was cross-examined. He had the advantage of observing the parties and W together with the material filed in the Court and obtained under subpoena but had not read the trial affidavits prior to giving his evidence at the trial.
Mr J took a history from the parties roughly consistent with their affidavit material. In his first report Mr J states:
[73]Asked if he spent time with his Dad, W said 'not anymore. I'd love to go to dad's house'. Asked why not, W said 'he keeps putting his finger up my butt. Happened last year. It was a bad thing' Asked how much he would like to see Dad on a scale of 1 to 10, W responded 10/10. He said 'I keep asking mum. I start crying because I miss him. Mum doesn't want me to do it anymore. Last time I saw him he said he is not going to do it again'. Asked if he believed dad when he said he wouldn't do it again, W said ‘yes'. Asked what he would do if Dad did do it again, W said 'I would tell Mum, because she told me to'.
Mr J asked W for 'three wishes'. He reports W as:
…W said that his first wish would be 'To go back to Daddy'. He said his second wish would be 'not to stick his finger up my butt.' As to his third wish, W said 'I wish I did not say that to the Policeman.'
Mr J observed all of the children with the father and reports:
[90]… On hearing that they were going to say hello to the father, they become immediately very excited. They rushed toward him as a group of four and swamped him with hugs. Y could not contain his excitement and was jumping up and down on the spot. Z immediately climbed onto the father's lap and stayed there. W showed perhaps the most delight and smiled widely as he hugged his Dad then stood back to let the other kids have turn. He approached the father in this way a number of times. The father was sensitive to W's need to acknowledgement and made a point of telling him how good it was to see him. Each of the children remained as close as possible to the father for the 10 minute duration agreed with the mother. X, too, stayed close and repeatedly hugged her Dad as he acknowledged each of them in turn. Z said 'I miss you Daddy. Can we sleep at your house one day? I haven't seen you in ages’.
At [118] Mr J articulated the possibilities available to him and indeed those that would occupy the consideration of the Court in making either positive findings or a finding of unacceptable risk. He sets them out as follows:
(a)the child is a victim of sexual abuse and the allegation is credible and accurate;
(b)the child is a victim of sexual abuse but, due to age or cognitive deficits, does not have the verbal skills to provide a credible description of his or her abuse;
(c)the child is a victim of sexual abuse but, due to fear, will not disclose his or her abuse;
(d)the child is a victim of sexual abuse but, due to misguided loyalty, will not disclose his or her abuse;
(e)the child is not a victim of sexual abuse and is credible but has misperceived an innocent interaction;
(f)the child is not a victim of sexual abuse but has been unintentionally contaminated by a concerned or hyper vigilant caretaker or authority figures;
(g)the child is not a victim of sexual abuse but has been intentionally manipulated by a caretaker or authority figure into believing that he or she has been abused;
(h)the child is not a victim of sexual abuse but knowingly falsely accuses someone of sexual abuse because of pressure from caretakers or authority figures who believe the child has been abused; and
(i)the child has not been sexually abused but knowingly falsely accuses someone of sexual abuse for personal reasons.
Mr J forms his opinions at [119] and following thus:
[119]W gave a credible description of sexual abuse. He has restated this repeatedly, voluntarily, and consistently. He has not recanted his claim, even though he has regretted doing so because of the consequences that ensued. It is possible that W has been sexually abused in the manner he described, and that the abuse was framed by the father as a game and reinforced with lollies.
[120]It is possible that W was not abused and has misperceived an innocent interaction, however, the consistency with which he has related his experience, and the fact that he has repeatedly claimed he pushed his father's hand away makes this seem unlikely.
[121]It is possible that W was not abused, but that he has been unintentionally primed by the mother or other concerned individuals. The history of previous allegations of inappropriate sexual behaviour by the father involving children means that some priming may be possible. Because this issue has been in the mother's mind (and others) it is possible that W may have been unintentionally primed to make a disclosure of this nature. The mother has personal knowledge of sexual behaviour by the father involving penetration of the anus. If she has any time questioned W in this regard or talked to him that he should speak up of such behaviour occurs, then it is possible W naïvely made a statement to that effect without understanding the implications.
[122]It is possible that W was not abused but intentionally primed by a concerned caretaker who thinks the father represents a risk of harm and is endeavouring to manipulate an allegation.
[123]Having regard to these possibilities I believe it is significant that W has maintained his claim of the father's behaviour even in the face of being separated for so long and wanting to spend time with him. I am inclined to think that, had W unintentionally or knowingly falsely accused the father of abuse, he would have recanted his claim by now in order to resume spending time with him. Thus, on the information available to this assessment, I believe there is a reasonable probability that W's allegation of sexual abuse is reliable. I also note that the mother's reaction to hearing his disclosure, as described in the statutory declaration of [Ms Q], suggested genuine shock that is not consistent with coaching on her part.
Mr J again interviewed the parents and W and observed the children with the father on 22 March 2020. At paragraph [35] Mr J remains unchanged in his view that 'there is a reasonable probability that W's allegations of sexual abuse are reliable'. He again remarks as to the consistency in the child's views. Mr J did not see indicators of coaching.
When giving his evidence in court, Mr J disclosed that he had been involved with the father since 2011 and prepared a report dated 17 August 2011 in respect of the proceedings in this Court before Cronin J in relation to the father's other daughter, Ms AP.
Mr J was asked to comment on the reliability of the third interview for W with Police where he spoke of the father's “sorry” apology on the evening of 20 April 2018. Mr J urged caution in assessing the reliability of the recollection of a six or seven year old child over a seven month gap between April and November 2018.
Mr J was of the opinion that a child of 10 years might ordinarily be able to self-protect to a degree, but saw W “as a less mature nine year old”.
Mr J was dubious as to whether W would be able to perpetuate the sophistication of a false story such as the father allegedly whispering 'sorry' over a period of a number of months and offered further that W “displayed traits of autism… and inability to be dishonest”.
Mr J, in his report of 2020, saw W as having an understanding of the sexual nature of the assaults he alleges against his father and that such behaviour was wrong.
Mr J was asked about the mother's assertions of family violence, including of the coercive and controlling types, but was of the view that there was more of a mutual inability in these parents to negotiate solutions to their conflicts. He did, however, both in court and in his reports, comment on the mother’s likely negative response to any findings or orders which would allow for unsupervised time for the children with the father.
Ms AB – Family Consultant
Ms AB prepared a family report as long ago as 1 February 2019. The interviews for the report were conducted in either late 2018 or January 2019. W was then seven years of age and he is now ten years old.
Ms AB’s recommendations appear at [120] – [122] as follows:
[120]If the Court were to find that there is an unacceptable risk of sexual abuse for the children in the care of their father, long-term professionally supervised time is likely to be the only way to adequately mitigate the physical risks to the children.
[121]If the Court were to find there is not an unacceptable risk of sexual abuse but were to find reports of [the mother] credible about [the father’s] alleged abuse of her, lack of commitment to the children during the relationship and his neglect of the children post separation, then it is recommended that the children spend about four nights with their father in a fortnight. Possibly in a single block of four nights or possibly in two separate blocks of time.
[122]This assessment does not indicate it is likely that the children would benefit from spending less than equal time with their mother.
Ms AB interviewed Mr Isles. She described him as presenting in a calm and self – assured manner. Ms AB reports the father believing the mother to be 'financially motivated to have primary care of the children, prone to making false allegations about his behaviour and opportunistic in gaining leverage from previous false allegations that he has a sexual interest in children'. The family report discloses the father, as long ago as January 2019, articulating the motive volunteered in this Court that the mother had approached him to father another child post their separation.
Ms AB reports at:
[55][The mother] reported that post separation, she and [the father] had got along well for the sake of the children. Her information suggested that their relationship had improved post separation. She said post separation “sex was okay” meaning that he did not pressure her to perform unwanted sexual acts.
[56][The father] reported differently to [the mother]. He maintained, “she’d do anything to get back at me”. [The father] said that one month before the allegation that he sexually abused W, [the mother] suggested that they reconcile and have another baby together. He claimed he firmly responded that this was not sensible. The family consultant gained the impression that [the father] was suggesting [the mother] may have been upset by his rejection of her and therefore motivated to harm him by concocting a false allegation
The father referred Ms AB to the Court findings and orders made in his favour in relation to both the litigation regarding his eldest daughter, Ms AP, and the indictment in respect of possession of child pornography.
The father conveyed to the family consultant, similarly to this Court, his view of the conspiracies between the mother and the school, child protection organisation, the DPP, and Child and Safety Services.
Ms AB interviewed the mother who denied that she would make false allegations of abuse and said that she believed the disclosures made by W to be truthful and factual.
The mother repeated to the family consultant the assertion she made to this Court that the father had engaged in a homosexual affair during their relationship.
In respect of one of the matters of tendency evidence raised in this Court, Ms AB reports:
[44][The mother] reported that during the shared care arrangement, the children would return to her in a neglected state with matted dirty hair, splinters in their fleet and with untreated bull ant bites. [The mother] spoke about a green discharge from [X]'s vagina in November 2017 which she believes was related (sic) her poor hygiene in the care of her father. She reported that the father became highly defensive when the doctor asked about the possibility of sexual abuse.
Ms AB interviewed the paternal grandmother, Ms G, who did not give evidence in these proceedings. Ms AB observed Ms G to speak lovingly and kindly about her grandchildren and that she supported her son in his denials of the allegations of sexual abuse of W. The family consultant describes Ms G ‘as being an advocate for [the father]'.
Ms AB also interviewed the maternal grandmother, Ms AC. She did not give evidence to this Court. She presented as relatively 'unassertive' in the reporting process compared to the paternal grandmother.
The family report conveniently documents police involvement in matters of the family violence between the parties with attendances by police on 27 January 2011, 20 November 2011, February 2013, 29 November 2013, 20 April 2015, 1 February 2017, 28 February 2017 and 10 November 2017. Police intervention was variously initiated by each of the parents. Some of the matters concerned alleged physical violence and others verbal argument.
Ms AB summarises Child Safety documents brought to court under subpoena. Notably there is a reference to W having inappropriately touched a student in his class on the penis three times in November 2016 when W would have been just five years of age.
Ms AB interviewed W at the age of seven years and five months. W spoke positively about his father. Ms AB reports:
[79]Asked about not seeing his father, W said “first I told mum…he keeped poking his finger up my bum when I was in bed with him, not that often”. Prompted, W went on to say “when we be silly together, I tickle him, he tickles back, then he pokes his finger up my bum…Dad usually starts it, sometimes I can dodge it”. W said the poking would happen “on the weekends, sometimes not weekend, the others share (the bed with their father) he doesn’t do it to them”.
[80]Asked what he wears in the bed of his father, W said he “usually sleep no clothes, just undies usually”. W said the poking happens “over undies, he doesn’t pull them down”. W volunteered “clothes, they itch him” meaning if W wears clothes they make his father feel itchy.
[81]Asked about bathing at the home of his father, W said “I mostly have showers with him, he does nothing to me in the shower, Dad washes me, sometimes the others, one at a time have a shower”. The family consultant gained the impression that W meant his father only washes but does not poke his bottom in the shower.
[82]Asked about when his father ever said anything about the bottom touching, W said that at night time his father told him “he won’t poke his finger up my bum anymore”. W said “I just said (to his father) thank you for saying that”. The family consultant gained the impression that W was referring to when his father visited the home of his mother after his disclosure.
W's views and references were elicited during the interview with the family consultant who reports:
[85]W said “I want to visit Dad…I miss him so much…I haven’t had fun with him for a while”. Asked what he would do if his father began to poke him in the bottom again, W said “I’d keep dodging, put my hands out”. Asked if he would tell anyone if the poking reoccurred, W said “no, I wouldn’t want them to hear it…they might laugh”. Asked if he would tell his mother about any further poking, W said “no”. Asked what she might do if she told him, W said “not let me go to Daddy’s for a while”. W went on to say, “I miss him so much, mum doesn’t park near Daddy’s house anymore…once I run down, give him a big hug and a kiss”.
The second eldest child X was also interviewed. She was five years and eight months of age at the time. The interview was unremarkable save that the X appeared oblivious to the issue of the alleged sexual abuse of the W. Like her brother, she said that she missed her father and would like to go to his house.
In her evaluation, Ms AB referenced some tendency evidence including the mother’s allegations that the father pressured her to perform the sexual acts which repulsed her. Ms AB comments:
[101]The incident when [the father] allegedly threatened suicide after [the mother] found out about his affair with a male suggests that [the father] may have emotionally manipulated [the mother] to cause her to sympathise with him. If [the father] pressured [the mother] to perform sexual acts that repulsed her, this would suggest a high concern that he was coercive and controlling of [the mother] to her detriment. If he had persisted in having his sexual needs met knowing this was unwanted by [the mother], this would suggest that he could be lacking in empathic capacity.
[102]The alleged abuse of [the mother] by [the father] is significant in relation to the likely veracity of the sexual abuse alleged by W. Generally speaking, it is easier to manipulate young children to comply with requests, compared to an adult. It could therefore be plausible that [the father] manipulated W to engage in sexual behaviour.
The family consultant states that she did not otherwise undertake a forensic interview of W in relation to the allegations of sexual abuse.
More generally and in respect of tendency or propensity, Ms AB comments:
[110]There are other factors, that although not proven raise a concern that [the father] might have a sexual interest in children. These include his successfully appealed conviction for child pornography, the allegations that he abused [Ms AP] and his friendship with a man who has been charged with a serious criminal offence.
When giving her evidence in court, Ms AB was asked to comment on the ability of these children, and children generally, to self-protect as they grow older noting that W is now ten years of age as opposed to seven years when interviewed by her. Her response was both revealing and somewhat surprising in its caution that she considered the circumstances around power imbalances and grooming of children such that even a late teenage child might not be willing to self-report improper behaviour in some circumstances.
Ms AB did not believe that W had been coached in his disclosures noting his particular use of language and context together with the consistency of his disclosures in circumstances where he may not understand the impropriety of the act, but where he did understand that there has been a direct impact on his relationship with his father.
Although the benefit of Ms AB’s evidence and opinion may have been constrained by her lack of involvement with this family after the report of early 2019 together with not having been provided with the trial affidavits prior to giving her evidence, I am of the view that much of her reporting, observations, and opinion remain relevant given the proximity in time of the interviews to W’s revelations and the context of W’s comments then and now.
W – disclosures of sexual abuse
The mother's evidence is that on 18 April 2018 at approximately 10:30pm, being a school holiday, W was watching a television show involving some animal activity. Other children were present as were three adult friends of the mother including her current partner, Mr N, although they were then not in a relationship.
The mother says that W stated, in response to seeing something on the television, “my dad sticks his fingers up my bum and it's disgusting”. The mother says that W was laughing when he made this statement as were the other children. W was not distressed by his statement.
The mother says that she was “shocked”. She put her telephone on video and either she or another adult asked W “what did you just say?” He repeated the comment.
The mother says that she was upset and went to the bathroom crying. She says that she had tears in her eyes when recording the statement from W. W followed her to the bathroom, but she does not think that he was upset by seeing her distressed.
The mother says that the adults, Mr N and Ms P, offered to take all of the children, including W, home with them for the night. They left at about midnight. The children stayed overnight with Mr N and Ms P. No evidence was adduced in these proceedings from Mr N and/or Ms P.
On the next morning being 19 April 2018 the mother took W to the police station where a first interview was conducted with a police officer No disclosures were made or repeated by W during that interview.
The mother says that she collected W from the interview and was told that he had made no disclosures. She says that they went for lunch. Initially it was the mother's evidence that she did not have any discussions with W in respect of the police interview and he making no disclosures, a scenario that I find unlikely. She later retreated in this evidence and conceded that it was entirely likely that she did have some discussions with W including asking him why he did not to repeat the disclosure to the police officer. It seems reasonable to assume that this is the case as she does say that W disclosed to her that he was “scared” at the police station.
The police officer describes W in the first interview as being “a bit shy, withdrawn, unsure”.
The police officer received a telephone call from the mother later on the afternoon of 19 April 2018 requesting a further interview be undertaken with the W. The mother discloses that she had asked W “if it was true?” W confirmed that his disclosure was true and that he had been too scared and reluctant to tell the police officer.
A second interview took place, this time at the mother's home, on the following day being 20 April 2018. W then repeated the disclosures that he had made to the mother and recorded on her telephone video on the night of 18 April including as the police officer says in his evidence to this Court, “my dad putting his finger up my bum”; “he does it every night that he sleeps in his father's bed”; “he hasn't been to his father's home for ages”; “he said he wears pyjamas and undies when he gets into his father's bed”.
The father deposes that “on or about 20 April” he was contacted by telephone by a police officer and advised that the police had received a report of alleged sexual abuse of W. The father says that later on that day he received a message from the mother inviting him to her home. In his affidavit of 1 February 2021 the father deposes:
[34] I went to [the mother's] house on about 20 April 2018. The following occurred:
(a)[The mother] was outside. I then went with [the mother] to her bedroom.
(b)After speaking to [the mother], I came back to the lounge where W was. He was sitting near my brother, Mr H ('Mr H').
(c)I gave W a hug and told him that I loved him.
(d)[The mother], who was in the kitchen at this time, asked what I had said to W.
(e)Mr H said words to the effect of nothing.
(f)I then went to W and Y's bedroom where X, Y and Z were to say hello and give them a hug. Z said that she was not coming to my house anymore. I ignored her comment and change the subject. [The mother] then came in and went off about me sitting on the bed in oily clothes.
(g) I then left the house.
W did not make a disclosure to a police officer in the first interview on 19 April 2018 although the evidence satisfies me that the interview was carried out in a proper, professional and sympathetic way. The mother now concedes that she spoke to W between the two interviews with a police officer on 19 and 20 April 2018 although she is unable to particularise her part in those conversations except that W confided in her that he had been “fearful” of repeating his disclosure to the police officer at the first interview. The mother’s intervention, therefore, raises some questions as to her influence, direct or indirect, on W's subsequent disclosure to the police officer on 20 April 2018 all of which must be viewed in the context of W’s young age at the time.
The police officer’s evidence of the second interview does itself give some lack of context to W's disclosure on that day where he says W's revelation was “blurted out” at or near the commencement of the interview which might suggest the possibility of adult intervention with W between the two interviews of 19th and 20th of April.
For reasons that remain unclear, but with some evidentiary concern, W did not disclose to a police officer until a third interview in November 2018 (some seven months after the event) that his father had allegedly apologised to him on the couch at the mother’s home on the evening of 20 April 2018. The mother and the second respondent urge me to place some weight on this asserted apology. Notably, all parties agree that Mr H, the father's brother, was sitting on the couch adjacent to W at the time and he corroborates the father's evidence that no apology was rendered. A tape recording made by the father of that conversation has proven of no assistance given its poor quality. The fact of there being a recording made by the father may, however, be suggestive otherwise of the father rendering an apology with the unlikely scenario of him recording himself apologising.
There is no corroborative medical evidence of W being abused where W's statements suggest repeated intrusive insertion of his father's finger into the child’s anus. The Court is, however, cognisant that medical evidence might not be available or conclusive as to sexual penetration.
The father offered in his evidence a plausible motive for the mother having made a false or manipulated allegation against him being that he refused a proposition made shortly prior to W's disclosure for him to father her child without future obligation. The father was not challenged or substantially challenged on this assertion.
The father says that the mother has a history of making false allegations against him including of family violence, on occasions to Police, where she has made complaint only then to withdraw the complaint.
The father says that the mother’s actions in September 2020 in signing consent orders on the first day of a trial and providing for him to ultimately spend five nights per fortnight unsupervised with the children is itself evidence of her lack of consistency and commitment to the allegation that he sexually abused W.
The context of W's revelation of 18 April 2015 offers other plausible and innocent explanations not fully and properly explored. Notably, the statement was made late at night in the company of other adults, responsive to something amusing on television, and in the company of other children where W was play acting and laughing at the time of the asserted disclosure whereupon W then witnessed his mother’s upset and crying in response.
The father's counsel argues that the tendency evidence relied upon by the mother and second respondent does not pass the test of 'significantly probative' where Cronin J made neither positive finding nor unacceptable risk finding in respect of Ms AP’s mother’s allegation of the father perpetrating sexual abuse against that child. Secondly, the father's conviction of possession of child exploitation pornography was ultimately dismissed on appeal and where the father gives a candid and plausible explanation for his possession of other pornographic material on a computer, being that it was present on the computer before he purchased it. Further, the father has consistently suggested that the transcript of the MSN conversations between himself and his cousin 'Mr E’ 'must have been doctored' and where the Court should be cautious in giving weight to this evidence given the long-term possession of the recordings by Ms AP's mother but, more particularly, Ms AP’s maternal grandmother, Ms L, who was not called to give evidence in this trial but where it is reasonably open for the Court to find that she is a person who has an active, long-term, and public vendetta against the father. Yet again where this MSN evidence is heavily relied upon, and where Ms L had substantial control of it, no explanation is given for her not being called to give evidence.
‘Mr E’ did not give evidence although it seems agreed between the parties that they have been unable to locate 'Mr E’ but where, in any event, his absence gives the Court some doubt as to the veracity of any interpretation of the transcripts and recordings where ‘Mr E’ did give evidence before Cronin J whose Reasons disclose:
[29]The other participant was the father's cousin. He also gave evidence that he had no knowledge of the controversial parts of the conversation and emphatically denied that there was any sexually explicit impropriety involved between he and the father.
The father was initially charged with rape of W. The DPP did not proceed on the indictment citing a lack of particularisation by W as to recall of any specific occasion of assault and where his recall was only of the more general nature. This lack of specificity is understandable given W’s young age but also relevant and important in my consideration as to whether I can make the positive findings urged on me by the mother and the second respondent Department.
Conclusion as to positive findings
Ultimately I am not persuaded that I am able to make a positive finding that the father did sexually abuse W as alleged where the onus sits with the respondents to the standard of on the balance of probabilities bearing in mind the gravity of the allegation and the consequences that flow. Whilst noting the context, consistency, and some coherent particularisations of W’s statements, the issue of alternative plausible innocent explanation remains where there is a lack of specificity of time in the disclosures.
The disclosures were made to a skilful and professional interviewing officer on the occasion of the second interview but only after likely intervention by the mother between first and second interviews.
The third interview where W discloses an 'apology' by the father did not take place until seven months after the alleged event which is a considerable time in the memory retention of a six or seven year old child and raises some doubts as to whether influence has been made on or to W’s statement or at least his memory retentions. The failure to call evidence from others present on 18 April and the issue of continuity raises doubts.
I generally accept the submissions of counsel for the father as to issues with the 'significant probative value' of the tendency evidence relied upon.
Consequently, I am unable to reach the required satisfaction on the balance of probabilities that the father perpetrated the act or acts of sexual abuse on W as alleged.
Mother’s alleged fabrication or opportunistic manipulation of W’s disclosure
I cannot find on the balance of probabilities that the mother has concocted or knowingly and opportunistically manipulated an innocent statement by W for her own ends. The onus here rests with the father to prove his assertion of fact on the balance of probabilities. Suffice to say that the consistency and provision of certain particulars in W's statements argue strongly against both concoction and manipulation. W understands that he suffers a loss, namely a more frequent and open relationship with his father, by reason of his consistent and continuing disclosures. Yet W has not recanted those disclosures. He gives some particulars in context such as the wearing pyjamas and that 'it’ does not occur in the shower. The experts, Mr J and Ms AB, have interviewed the mother and W and are dismissive of the father's assertion of fabrication. I had the advantage of seeing and hearing the mother give her evidence and her responses, whilst often unsophisticated, she did not give the impression of fabrication or coaching. Indeed, the mother’s very lack of sophistication argues against her ability to fabricate/manipulate matters over a period of now some three and one half years. Similarly, W’s failure to repeat his disclosure in the first police interview argues against coaching by any adult.
Unacceptable risk
My findings above are not, however, the end of my consideration. Ultimately, this Court's focus is not on guilt or innocence but on the best interests of the children. The considerations and findings above are in respect of alleged past acts or behaviour. It remains for me to conduct a separate and predictive consideration as to risk where the focus is on the adjective 'unacceptable'. In doing so, however, I again consider and weigh past and current evidence and facts including tendency evidence. I am able to reach a conclusion of unacceptable risk on a cumulative consideration but without the restriction of particular findings on the balance of probabilities. Rather, the consideration here is as to “possibilities” in a prospective sense. This is not to be considered as a 'default consideration' where a court is unable to make a positive finding of fact but one carried out discretely, separately and independently with the focus being on future risk rather than past fact.
Having heard and considered all the evidence, I am of the view that the father does represent an unacceptable risk to these children of perpetrating sexual abuse should their time with him be other than supervised. I rely on and emphasise the following:
(a)W's disclosures have not been recanted but have been consistent, contextual, and coherent now for a period of some three and a half years;
(b)W has been able to give some details and particulars to a degree such as there being more than a single event; that they take place in the father's bed; that they do not take place in the shower; what bedclothes are or are not worn;
(c)W has continued to repeat the disclosure despite his understanding of a negative ramification for him being that his preferred relationship with his father is limited and diminished.
(d)W himself offers a plausible explanation for not making a disclosure until the second interview with a police officer in that he was uncomfortable or 'fearful' at the police station;
(e)W's statements to his mother that the father whispered an apology to him on the couch on 20 April 2018 have some corroboration in that the mother, the father, and Mr H all agreed that the father did speak to W on the couch although, the father and Mr H both deny that an apology was rendered;
(f)The consistency of W's statements, his age, my observations of the mother’s evidence, and the opinions of the experts, combine to be highly suggestive that W's has not been coached by the mother;
(g)There is tendency evidence set out earlier in these Reasons of significant probity including but not limited that the father has a previous sexual interest in underage males, including male relatives, together with an interest in child exploitation material. In this consideration I also take into account the other tendency evidence set out earlier in these Reasons.
(h)W himself has exhibited some overt sexualised behaviour at school;
(i)Whereas there may be plausible or an innocent alternative explanation for W's revelations on 18 April 2018, his words 'dad puts his finger up my bum' have been maintained consistently and equally therefore also constituting a plausible possibility; and
(j)The Court appointed psychologist, Mr J, concludes that W ‘gave a credible description of sexual abuse' and that 'there is a reasonable probability that W's allegations of sexual abuse are reliable'.
Consequently, the cumulative effect of the above factors, all of which have some probative value, satisfy me that the father presents as a risk to the children and that without the constraints of supervision, at least until they are of an age to self–protect, makes such a risk unacceptable.
GENERAL FINDINGS
On the evidence I am able to find these four children have established relationships with both their parents and despite the restrictions and restraints on the children's time with their father since 2018. The evidence of both Mr J and Ms AB suggests that the children’s relationship with their father remains close and strong and to have endured the limitations and restrictions in place now for some years.
I find that the relationship between the parents was highlighted by family violence and volatility. There was frequent involvement of Police, often unnecessarily so. There were the imposition of PFVO.
The parents’ interpersonal relationship is now essentially a suspicious and conflictual one where they tend towards mutual criticism. My observation of the parents giving evidence was that there is a probable power imbalance in the relationship with the father being more assertive and dominant whereas the mother is more timid.
The father presented as empowered and entitled in his parenting of the children and in his evidence generally in court. Notably his responses that he would not accept any relationship with his children that included supervision show a level of arrogance and entitlement perhaps achieved through his long history of litigation in various courts, but with a distinct lack of insight and child focus.
The children very much want a relationship with their father. They want more time than is currently available. The evidence is of a mutually affectionate and comfortable relationship. There is no evidence of any reluctance or hesitation in the children in their relationship with their father including for W who is emphatic in wanting more time with his father and despite not recanting his allegations.
Each of these parents has the capacity to attend to the children's physical needs albeit within circumstances where they seem resigned to reliance upon welfare and where their obligations are compounded and made more onerous by probable mental health issues for the children and W’s behaviour.
The evidence of the educational professional is complimentary of the father’s ability to attend to W's behavioural issues which manifest seriously at school and where the mother concedes that she has endured considerable difficulty with such behaviour (also shared by Y) and where a diagnosis of autism for W is likely where Y already suffers this diagnosis.
Each of these parents has adequate support networks albeit where the Court did not have the benefit of seeing or hearing from the mother's current partner who is the father of her infant child. The evidence of the paternal grandfather, Mr AD, and Mr H, was from my observations, supportive of the father but to a stage of being partisan and where the Court can have little confidence that either might act protectively if the children were to complain of sexual abuse such that would expose culpability of the father. Each of Mr AD and Mr H were emphatic and resolute in their rejection of the allegations against the father and dismissive of the possibility and despite their apparent awareness of his history. As a consequence, the ability of either to provide objective and protective supervision is dubious albeit that the Court is aware that both have previously, albeit reluctantly, provided supervision. The paternal grandmother was not called to give evidence despite being in Court for much of the proceedings and where she is subject to criticism of her protective objectivity in the Child Safety records.
The mother has enlisted the support, or has had imposed on her support, from Ms L. Ms L is the maternal grandmother of Ms AP who was the subject of the family law litigation in 2011/2012 where the father (or some other male) had allegedly sexually abused Ms AP, his daughter, Ms L’s granddaughter, with similar particulars to that alleged by W. Ms L featured prominently in the evidence although strangely not herself being required to give evidence. The strongest suggestion is that she continues a long-standing and public vendetta against the father where her beliefs apparently differ to the findings of Justice Cronin. Suffice to observe that Ms L’s influence on the mother has not always been objective or helpful but where the mother now notably consents to an order where the children will not be brought into contact with Ms L.
I find the mother’s evidence generally to be unsatisfactory in respect of her retreat from the sworn evidence given by her in the trial before Cronin J which effectively provided alibi evidence for the father where it was alleged that he may have sexually abused Ms AP. Her responses in this Court were glib and unpersuasive. I otherwise found the mother to be generally a credible albeit unsophisticated witness. The mother’s evidence in respect of her signing consent orders in September 2020 where she says she was influenced to do so by representations by Officers of the Department of Child Safety, is plausible, believable, offered voluntarily, and generally corroborates my view of the mother as a timid, naïve, and callow young mother but one who is protective of her children.
My observations of the father are of a 36 year old man more worldly and experienced than the mother albeit one who himself is without apparent ambition towards the responsibilities of independent financial support of his children.
Generally, and despite their propensity for mutual conflict, a reliance on welfare, and the lack of sophistication, I would be satisfied, absent the issues of unacceptable risk that these parents each have the basic skills to care for their young children albeit with the assistance of the school teachers and government departments.
ORDERS
Given my findings of unacceptable risk for these children, I must make orders which circumstantially protect them where I find the magnitude of the risk requires significant protection within the context of their ages and where they themselves seem oblivious to the risks which confront them and where they have an open and affectionate relationship with their father.
The Court appreciates the supervision provided to date through the interim stages of this litigation by Mr H and Mr AD. Nevertheless, each does not seemingly entertain the possibility of the father acting inappropriately and I do not expect that their views will be changed by my findings above and the evidence given and adduced in court where Mr AD sat throughout the trial after giving his own evidence. Further, each has shown an understandable reluctance to continue in the onerous role of regular and frequent supervisor. No other laypersons were offered as potential supervisors.
I am of the view that direct supervision of the children's time with their father is necessary given their ages, their affectionate relationships with him, and their lack of understanding of the risks that I have found to exist. The experts Mr J and Ms AB appear to share this view. Consequently, the only options available to properly protect the children are by formal supervision. The father does not work and would not be able to fund, with any frequency, a private and independent professional supervisor and indeed this option was not explored before me, thereby leaving only the option of a Contact Centre. The father does not work and hence the financial support for these four children falls on the mother. The father should therefore meet any Contact Centre costs.
I mindful that Contact Centres, being limited in their availability and resources, prefer generally not to offer long-term supervision. As such, supervision should only be until the children are of an age where they are able to self-protect. I note Ms AB's caution here but prefer that with age, experience and some proper self–protective education, the risks may be mitigated to an extent where supervision might cautiously be removed. This will, of course, require some form of consent by the mother and/or the second respondent Department or further court intervention and I will give liberty to all the parties to apply accordingly.
There remains the issue of the father's evidence, confirmed by his counsel's final address, that the father will not accept any conditions on his time with the children be they supervision or day–times only. I cannot realistically oblige this father to spend time with his children but my findings are such that the children must be supervised in the presence of the father, at least for a period. I say only that the evidence is overwhelming and that these children themselves do want to spend time with their father. Consequently, the onus rests with the father as the Court will not and cannot be compromised in its findings and orders because of an ultimatum delivered by the father. I will, therefore, require the father give notice within 28 days of the date of these orders that he will participate in supervised time with the children failing which I will be obliged to reserve all such time and communication except for the providing of the anniversary gifts and letters as to otherwise leave the issue open will only serve to give these children unfulfilled expectations of a relationship with their father.
In the circumstances of my findings above and where there is a history of family violence between the parents accompanied by a continuing conflictual and non–communicative relationship, the mother will have sole parental responsibility for the children, but conditional upon providing notice to the father of important and relevant medical and educational aspects.
The second respondent - Department of Communities
On the evidence given and adduced in this matter I feel obliged to comment on the role played by the now second respondent Department in these proceedings.
I accept the evidence of the mother that she was induced, at least in part, to sign and enter into consent parenting orders in litigation between herself and the father on 21 September 2020 where the factual situation was identical to that now tried in this Court. By that time these parents, and vicariously their children, had been embroiled in lengthy and acrimonious litigation for some considerable time as now evidenced by the 12 days occupied by this trial. There had been numerous interim and interlocutory hearings and orders. The children had been interviewed by experts. The Court had ordered and had appointed a taxpayer funded ICL. It is my understanding that both parties had been in receipt of legal aid the thereby funded by the public purse. The matter had been placed in the list for trial for a number of months with orders for the preparation of trial documents.
Significantly, the now second named respondent Department had been invited to intervene in those first proceedings at an early date but had refused the invitation.
When the matter was called for trial on 20 September 2020 the Court was advised that there had been very recent discussions and negotiations between the parties, their legal representatives, and the ICL resulting in consent orders providing inter-alia for the children to spend time with the father which would eventually involve unsupervised and overnight time.
As is the case with any parenting consent orders coming before this Court, the parties were informed that the Court would still require satisfaction as to the proposed orders being in the best interests of the children including as to any protective concerns but obviously within the context of mutual consent of both parties and the ICL. There followed relatively lengthy submissions including, from my recollection, some argument by way of submissions as to the detail of the orders for the children's time with the father, but in circumstances where the children would remain living primarily with the mother. Significantly, the mother through her counsel, informed the Court that she no longer intended to prosecute her serious allegations, until then untested, that the father had sexually assaulted W. Ultimately of course, this Court was misled by the mother in this respect where, on her evidence now, she did not ever recant those allegations. The fact that this Court now makes a finding of unacceptable risk is therefore immaterial to the actions of the mother, induced as she says she was by the Department, to the consent orders urged upon the Court by she herself and the ICL on 21 September 2020. The Court was ultimately satisfied on the balance of probabilities that the proposed orders were in the best interest of the children in no small part by the mother’s decision not to prosecute her case. Within a week or so the Department brought an application, as offered to the mother, under the State legislation before a state magistrate resulting in the children being placed (or remaining) in the mother’s care but time with the father either being suspended or limited by conditions whilst an “assessment” took place but where the evidence clearly suggests that in reality the “assessment” had been conducted prior to the matter coming before me on 20 September. Not surprisingly, the father immediately brought another application to this Court whereupon the Department apparently conceded jurisdiction to this Court and (this time) accepted the invitation to join as a second respondent.
I accept the mother’s evidence given in this Court only during cross-examination that, unbeknown to the Court, the other party, or the ICL, the mother and/or her own mother had been engaged in the week or two prior to 20 September in discussions with an officer or officers of the Department to which, according to the mother, she was informed that she could enter into consent orders thereby avoiding a contested trial but where the Department would immediately intervene by activating state legislation, place the children into the mother's care, but prevent the children spending any time with the father that would involve overnight or unsupervised time. Noting that the Department has previously been invited to join these proceedings pursuant to s 91B of the Act but had declined, the failure of the Department to then seek leave to join albeit at the last hour is to me inconceivable.
The above came to light only by way of a voluntary response given by the mother during cross-examination. This information was not included in the mother’s trial affidavit (although she gave some other reasons for entering into the consent orders on 20 September). The Department, now having intervened in these current proceedings as second respondent, did not disclose this material evidence in affidavit or any other form prior to the mother's revelations from the witness box and in circumstances where it is now evident that the two counsel appearing for the second respondent Department were themselves in fact present at meetings shortly following 21 September 2020 involving the anticipated state court proceedings and obviously privy to determinations made by an offer of the Department by 17 September being four days prior to the trial. That this Departmental Officer did not give evidence to this Court on what is clearly a material issue in the current trial is mystifying where leave was granted during the trial for relevant evidence to be adduced.
In these Reasons I have described the mother variously as 'timid' and 'unsophisticated'. I have little doubt that such an inducement from the second named respondent Department immediately prior to the listed trial of 21 September 2020 was an attractive proposition to this mother so as to both secure her children living with her and to avoid the trial – as indeed was agreed by the mother during her evidence to this Court.
At no time during the discussions between the Department and the mother/maternal grandmother did the Department seek to intervene in the ongoing and lengthy litigation culminating in the trial date of 21 September 2020.
Despite my granting of leave upon the mother's revelations, the second respondent Department did not see fit to adduce evidence from the employee(s) of the Department directly involved in the discussions with the mother immediately prior to 20 September 2020. Rather evidence was adduced from Ms AJ in only general terms as to departmental policy and of meetings after the event all of which was of little assistance to this Court and served in no way to address the concerns of the Court as to the inducements given to the mother.
The inference I take from the mother's evidence is that her own solicitor/counsel at the time was not included in these discussions or indeed given the courtesy of advice from the Department as to the discussions taking place and their content.
On the evidence before me I find that this mother was induced by the second respondent Department to enter into consent orders which she knew would not be put into effect. When confronted with this evidence in court I used the term “conspiracy”. I maintain this to be a useful and accurate terminology if defined as the meeting of minds to achieve an end. Of particular interest and concern to me is what appears at [23.d] of Ms AE’s affidavit and is worthy of repetition here:
[The mother] confirmed that she would be willing to write an Affidavit indicating that she had only consented to the FLC orders because she had been told her Legal Aid funding would be withdrawn if she did not agree.
Given the mother’s revelation to this Court, her motivation was not so limited.
In circumstances where the Court is charged with determining the best interests of children under federal legislation and where the State Department refused the invitation to intervene, but where this Court cannot compel such intervention, I consider the actions of the Department to constitute a form of abuse of process of this Court where the Court and the public purse has been put to substantial and unnecessary expense resulting in the re–litigating this lengthy and complex parenting matter.
The irony, of course, is that whilst these two parents, their families, vicariously the children and the public purse, have been put through the trauma and expense of preparation for and conduct of another trial, this Court has actually made findings on the same set of facts quite contrary to those apparently anticipated by the Department’s Officer(s) on 17 September 2020 (but on what basis escapes me) and again worthy of repetition from Ms AJ’s affidavit at [16]:
I am aware that on 17 September 2020 a decision was approved by [Ms AG, administrator], A&RL, that a further Child Safety Assessment was required. This decision was based on information that the Isles siblings would be having unsupervised contact with their [father], who Child Safety had previously determined was a person believed responsible for the emotional harm of his child W due to sexual abuse. (Emphasis added)
I make the above comments only obiter to my Reasons above where I remain charged with making findings as to the best interests of the children as indeed I would have been on 21 September 2020 but for what can only be seen as the unwarranted and unfortunate actions of an employee of the now second respondent in concert with the mother.
My enquiries of my judicial colleagues suggest (hopefully) that the above scenario is not common and may well be unique. However, lest it becomes practice, I intended to provide a copy of these Reasons and comments to the Principal Registrar of this Court with a request that a copy be provided to the Secretary, Department of Justice and hopefully so as to activate some discussions towards, at least, a protocol to avoid any repetition of this unfortunate situation.
I certify that the preceding three hundred and four (304) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice . Associate:
Dated: 20 December 2021
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